United States v. Councilman

United States Court of Appeals
For the First Circuit

No. 03-1383

UNITED STATES OF AMERICA,

Appellant,

v.

BRADFORD C. COUNCILMAN,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella and Selya, Circuit Judges,
Cyr, Senior Circuit Judge,
Lynch, Lipez, and Howard, Circuit Judges.

John A. Drennan, Criminal Appellate Attorney, U.S. Department
of Justice, with whom Michael J. Sullivan, U.S. Attorney, Paul G.
Levenson, Assistant U.S. Attorney, and Paul K. Ohm, Trial Attorney,
U.S. Department of Justice, were on brief, for appellant.

Andrew Good, with whom Matthew Zisow and Good & Cormier were
on brief, for appellee.

Patricia L. Bellia and Peter P. Swire on brief for Senator
Patrick J. Leahy, amicus curiae.
 Marc Rotenberg and Marcia Hofmann on brief for Whitfield
Diffie, Edward W. Felten, John R. Levine, Peter G. Neumann, and
Bruce Schneier, amici curiae.

Shayana Kadidal and Carlos E. Gonzalez on brief, pro sese,
amici curiae.

Orin S. Kerr on brief for Center for Democracy and Technology,
Electronic Frontier Foundation, Electronic Privacy Information
Center, American Library Association, American Civil Liberties
Union, and Center for National Security Studies, amici curiae.

Opinion En Banc

August 11, 2005
 LIPEZ, Circuit Judge. This case presents an important

question of statutory construction. We must decide whether

interception of an e-mail message in temporary, transient

electronic storage states an offense under the Wiretap Act, as

amended by the Electronic Communications Privacy Act of 1986, 18

U.S.C. §§ 2510-2522. The government believes it does, and indicted

Councilman under that theory. The district court disagreed and

dismissed the indictment. A divided panel of this court affirmed.

We granted review en banc and now reverse.1

I.

A. An Introduction to Internet E-mail

The Internet is a network of interconnected computers.

Data transmitted across the Internet are broken down into small

"packets" that are forwarded from one computer to another until

they reach their destination, where they are reconstituted. See

Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act:

The Big Brother that Isn't, 97 Nw. U. L. Rev. 607, 613-14 (2003).

Each service on the Internet -- e.g., e-mail, the World Wide Web,

or instant messaging -- has its own protocol for using packets of

data to transmit information from one place to another. The e-mail

protocol is known as Simple Mail Transfer Protocol ("SMTP").

1
We acknowledge with gratitude the assistance of amici curiae.

-3-
 After a user composes a message in an e-mail client

program,2 a program called a mail transfer agent ("MTA") formats

that message and sends it to another program that "packetizes" it

and sends the packets out to the Internet. Computers on the

network then pass the packets from one to another; each computer

along the route stores the packets in memory, retrieves the

addresses of their final destinations, and then determines where to

send them next. At various points the packets are reassembled to

form the original e-mail message, copied, and then repacketized for

the next leg of the journey. See J. Klensin, RFC 2821: Simple Mail

Transfer Protocol (Apr. 2001), at

http://www.ietf.org/rfc/rfc2821.txt; Jonathan B. Postel, RFC 821:

Simple Mail Transfer Protocol (Aug. 1982), at

http://www.ietf.org/rfc/rfc821.txt ("RFC 821"). Sometimes messages

cannot be transferred immediately and must be saved for later

delivery. Even when delivery is immediate, intermediate computers

often retain backup copies, which they delete later. This method

of transmission is commonly called "store and forward" delivery.

Once all the packets reach the recipient's mail server,

they are reassembled to form the e-mail message. A mail delivery

agent ("MDA") accepts the message from the MTA, determines which

user should receive the message, and performs the actual delivery

by placing the message in that user's mailbox. One popular MDA is

2
Sometimes called a mail user agent ("MUA").

-4-
"procmail," which is controlled by short programs or scripts called

"recipe files." These recipe files can be used in various ways.

For example, a procmail recipe can instruct the MDA to deposit mail

addressed to one address into another user's mailbox (e.g., to send

mail addressed to "help" to the tech support department), to reject

mail from certain addresses, or to make copies of certain messages.

Once the MDA has deposited a message into the recipient's

mailbox, the recipient simply needs to use an e-mail client program

to retrieve and read the message.3 While the journey from sender

to recipient may seem rather involved, it usually takes just a few

seconds, with each intermediate step taking well under a second.

See, e.g., W. Houser et al., RFC 1865: EDI Meets the Internet

(Jan. 1996), at http://www.ietf.org/rfc/rfc1865.txt ("For a modest

amount of data with a dedicated connection, a message transmission

would occur in a matter of seconds . . . .").

B. Facts Alleged in the Indictment

Defendant-appellee Bradford C. Councilman was Vice

President of Interloc, Inc., which ran an online rare and out-of-

print book listing service. As part of its service, Interloc gave

book dealer customers an e-mail address at the domain

"interloc.com" and acted as the e-mail provider. Councilman

managed the e-mail service and the dealer subscription list.

3
In some cases, the e-mail client program is accessed through
the World Wide Web. This does not change the present discussion.

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 According to the indictment, in January 1998, Councilman

directed Interloc employees to intercept and copy all incoming

communications to subscriber dealers from Amazon.com, an Internet

retailer that sells books and other products. Interloc's systems

administrator modified the server's procmail recipe so that, before

delivering any message from Amazon.com to the recipient's mailbox,

procmail would copy the message and place the copy in a separate

mailbox that Councilman could access. Thus, procmail would

intercept and copy all incoming messages from Amazon.com before

they were delivered to the recipient's mailbox, and therefore,

before the intended recipient could read the message. This

diversion intercepted thousands of messages, and Councilman and

other Interloc employees routinely read the e-mail messages sent to

Interloc subscribers in the hope of gaining a commercial advantage.

C. Procedural History

On July 11, 2001, a grand jury returned a two-count

indictment against Councilman. Count One charged him under 18

U.S.C. § 371, the general federal criminal conspiracy statute, for

conspiracy to violate the Wiretap Act, 18 U.S.C. § 2511,4 by

intercepting electronic communications, disclosing their contents,

using their contents, and causing a person providing an electronic

4
The Wiretap Act was amended in relevant respects in 2001,
after Councilman's alleged conduct and, for that matter, after the
indictment. Accordingly, all statutes are cited according to the
United States Code as of 1998 except where specified otherwise.

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communications service to divulge the communications' contents to

persons other than the addressees.5 The object of the conspiracy

was to exploit the content of e-mail from Amazon.com to dealers in

order to develop a list of books, learn about competitors, and

attain a commercial advantage for Interloc and its parent company.6

The parties stipulated to certain undisputed facts: the

procmail recipe worked only within the confines of Interloc's

computer; at all times at which procmail performed operations

affecting the e-mail system, the messages existed "in the random

access memory (RAM) or in hard disks, or both, within Interloc's

computer system"; and each e-mail message, while traveling through

wires, was an "electronic communication" under 18 U.S.C.

§ 2510(12).

Councilman moved to dismiss the indictment for failure to

state an offense under the Wiretap Act, arguing that the

intercepted e-mail messages were in "electronic storage," as

defined in 18 U.S.C. § 2510(17), and therefore were not, as a

5
The indictment contained several errors. It alleged
conspiracy to disclose the contents of unlawfully intercepted
electronic communications under 18 U.S.C. § 2511(1)(a), which
should have read § 2511(1)(c), and conspiracy to use the contents
of unlawfully intercepted electronic communications under
§ 2511(1)(c), which should have read § 2511(1)(d) or § 2511(1)(b).
No superseding indictment corrected these errors. Councilman has
not raised this issue, and we assume, for purposes of this appeal
only, that the indictment charged the conspiracy correctly.
6
Count Two, which alleged conspiracy to violate the Computer
Fraud and Abuse Act, 18 U.S.C. §§ 1030(a)(2)(C) and (c)(2)(B), was
voluntarily dismissed by the government.

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matter of law, subject to the prohibition on "intercept[ing] . . .

electronic communication[s]," 18 U.S.C. § 2511(1)(a). The district

court initially denied the motion to dismiss. As trial preparation

began, however, the district court sua sponte reconsidered its

decision in light of the then-recently decided case of Konop v.

Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002). After

further briefing, the district court granted Councilman's motion to

dismiss Count One, ruling that the messages were not, at the moment

of interception, "electronic communications" under the Wiretap Act.

United States v. Councilman, 245 F. Supp. 2d 319 (D. Mass. 2003).

A divided panel of this court affirmed. United States v.

Councilman, 373 F.3d 197 (1st Cir. 2004). The majority concluded

that, because the definition of "wire communication" includes

"electronic storage" but the definition of "electronic

communication" does not, the Wiretap Act's prohibition on

"intercept[ion]" does not apply to messages that are, even briefly,

in "electronic storage." Id. at 200-04. The full court granted

the government's petition for rehearing en banc. 385 F.3d 793 (1st

Cir. 2004) (per curiam). Because this is an appeal of an order

dismissing an indictment on "purely legal" grounds, our review is

de novo, United States v. Lopez-Lopez, 282 F.3d 1, 9 (1st Cir.

2002), and we assume the truth of the facts alleged in the

indictment, see Bank of Nova Scotia v. United States, 487 U.S. 250,

261 (1988).

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 II.

The Wiretap Act of 19687 specified, inter alia, the

conditions under which law enforcement officers could intercept

wire communications, and the penalties for unauthorized private

interceptions of wire communications. As amended by the Electronic

Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat.

1848 ("ECPA"), the Act makes it an offense to "intentionally

intercept[], endeavor[] to intercept, or procure[] any other person

to intercept or endeavor to intercept, any wire, oral, or

electronic communication." 18 U.S.C. § 2511(1). Two terms are at

issue here: "electronic communication" and "intercept."

Councilman contends that the e-mail messages he obtained

were not, when procmail copied them, "electronic communication[s],"

and moreover the method by which they were copied was not

"intercept[ion]" under the Act. Because these contentions raise

important questions of statutory construction with broad

ramifications, we discuss in some detail the Act's text, structure,

and legislative history. We conclude that Councilman's

interpretation of the Wiretap Act is inconsistent with Congress's

intent. We then turn to whether Councilman had fair warning that

the Act would be construed to cover his alleged conduct in a

criminal case, and whether the rule of lenity or other principles

7
Formally known as Title III of the Omnibus Crime Control and
Safe Streets Act of 1968, Pub. L. No. 90-351, tit. III, §§ 801-804,
82 Stat. 211 (codified as amended at 18 U.S.C. §§ 2510-2522).

-9-
require us to construe the Act in his favor. We find no basis to

apply any of the fair warning doctrines.

A. "Electronic Communication"

The government contends that "electronic communication"

means what it says, and no less: "any transfer of signs, signals,

writing, images, sounds, data, or intelligence of any nature

transmitted in whole or in part by a wire, radio, electromagnetic,

photoelectronic or photooptical system that affects interstate or

foreign commerce," with four specific exceptions not relevant here.

18 U.S.C. § 2510(12). Councilman argues, however, that Congress

intended to exclude any communication that is in (even momentary)

electronic storage. In his view, "electronic communication[s]"

under the Wiretap Act are limited to communications traveling

through wires between computers.8 Once a message enters a

computer, he says, the message ceases (at least temporarily) to be

an electronic communication protected by the Wiretap Act. He

claims that Congress considered communications in computers to be

worthy of less protection than communications in wires because

users have a lower expectation of privacy for electronic

communications that are in electronic storage even fleetingly, and

that the Act embodies this understanding.

8
We understand Councilman to refer to communications in
"wires" in order to exclude communications within computers, rather
than to exclude wireless connections.

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 1. Text

We begin, as we must, with the statute's text. United

States v. Rosa-Ortiz, 348 F.3d 33, 36 (1st Cir. 2003). As noted

above, the statutory definition of "electronic communication" is

broad and, taken alone, would appear to cover incoming e-mail

messages while the messages are being processed by the MTA.

Councilman argues, however, that the plain text of the

statute exempts electronic communications that are in storage from

the purview of the Wiretap Act. He contends that the definition of

"electronic communication" must be read alongside the definition of

"wire communication" and limited by what the latter includes but

the former does not. The ECPA amended the 1968 definition of "wire

communication" to specify that "such term includes any electronic

storage of such communication." 18 U.S.C. § 2510(1); ECPA

§ 101(a)(1)(D), 100 Stat. at 1848. By contrast, the definition of

"electronic communication" does not mention electronic storage.

See 18 U.S.C. § 2510(12).9 Therefore, Councilman infers, Congress

9
Section 2510(12) defines "electronic communication" as:

[A]ny transfer of signs, signals, writing, images,
sounds, data, or intelligence of any nature transmitted
in whole or in part by a wire, radio, electromagnetic,
photoelectronic or photooptical system that affects . . .
commerce, but . . . not includ[ing] --
(A) any wire or oral communication;
(B) any communication made through a tone-only paging device;
(C) any communication from a tracking device . . . or
(D) electronic funds transfer information stored by a
financial institution in a communications system used for
the electronic storage and transfer of funds.

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intended wire communications, but not electronic communications, to

include electronic storage. Moreover, Congress defined "electronic

storage" expansively to include "any temporary, intermediate

storage of a wire or electronic communication incidental to the

electronic transmission thereof." 18 U.S.C. § 2510(17); see

Councilman, 245 F. Supp. 2d at 320 (describing this definition as

"extraordinarily -- indeed, almost breathtakingly -- broad").

Since the parties stipulated that the messages in this case were

"in the random access memory (RAM) or in the hard disks, or both,

within Interloc's computer system" at the time of the interception,

those messages fall under the statutory definition of "storage."

As often happens under close scrutiny, the plain text is

not so plain. The statute contains no explicit indication that

Congress intended to exclude communications in transient storage

from the definition of "electronic communication," and, hence, from

the scope of the Wiretap Act. Councilman, without acknowledging

it, looks beyond the face of the statute and makes an inferential

leap. He infers that Congress intended to exclude communications

in transient storage from the definition of "electronic

communication," regardless of whether they are in the process of

being delivered, simply because it did not include the term

"electronic storage" in that definition. This inferential leap is

not a plain text reading of the statute.

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 Councilman's basis for making this leap is a canon of

construction: "[W]here Congress includes particular language in one

section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion." Russello v.

United States, 464 U.S. 16, 23 (1983) (quotation marks and citation

omitted; alteration in original); see also Trenkler v. United

States, 268 F.3d 16, 23 (1st Cir. 2001) (characterizing the maxim

as a canon of construction). Reliance on a canon of construction

to support the inference belies the availability of a plain text

argument. Rather, it confirms that the text of the statute is

ambiguous with regard to the communications at issue.

The question, then, is whether Councilman's inferential

leap, based on a canon of construction, is justified. The Russello

maxim -- which is simply a particular application of the classic

principle expressio unius est exclusio alterius -- assumes that

Congress acts carefully and deliberately in including terms in one

part of a statute and omitting them in another. See Barnhart v.

Peabody Coal Co., 537 U.S. 149, 168 (2003) ("We do not read the

enumeration of one case to exclude another unless it is fair to

suppose that Congress considered the unnamed possibility and meant

to say no to it.").

Sometimes that is a reasonable assumption; sometimes it

is not. "The general rule that the expression of one thing is the

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exclusion of others is subject to exceptions. Like other canons of

statutory construction it is only an aid in the ascertainment of

the meaning of the law, and must yield whenever a contrary

intention on the part of the lawmaker is apparent." Springer v.

Gov't of Phil. Islands, 277 U.S. 189, 206 (1928); United States v.

Vonn, 535 U.S. 55, 65 (2002) ("[T]he canon . . . is only a guide,

whose fallibility can be shown by contrary indications that

adopting a particular rule or statute was probably not meant to

signal any exclusion of its common relatives.").

The maxim upon which Councilman relies is most apt when

Congress enacts a new, self-contained statute, and two provisions

of that act, drafted with parallel language, differ in that one

provision uses a term, but the other provision, where it would be

equally sensible to use that term if Congress desired it to apply,

conspicuously omits it. Under such conditions, the maxim's

interpretive value is at its apex because the underlying inference

of legislative intent is most plausible. See Field v. Mans, 516

U.S. 59, 75-76 (1995) ("The more apparently deliberate the

contrast, the stronger the inference, as applied, for example, to

contrasting statutory sections originally enacted simultaneously in

relevant respects.")

If the statute's language, structure, or circumstances of

enactment differ from that idealized picture, the canon's force is

diminished. For example, if the language of the two provisions at

-14-
issue is not parallel, then Congress may not have envisioned that

the two provisions would be closely compared in search of terms

present in one and absent from the other. "The Russello

presumption -- that the presence of a phrase in one provision and

its absence in another reveals Congress'[s] design -- grows weaker

with each difference in the formulation of the provisions under

inspection." City of Columbus v. Ours Garage & Wrecker Serv.,

Inc., 536 U.S. 424, 435-36 (2002); see also Clay v. United States,

537 U.S. 522, 529 (2003) (rejecting Russello-based argument because

two statutory provisions were not parallel). Similarly, where the

history of the two provisions is complex, the canon may be a less

reliable guide to Congressional intent. For example, if the first

provision was already part of the law, whereas the second is

entirely new, Congress may have paid less attention to subtle

differences between the two. Cf. Moreno Rios v. United States, 256

F.2d 68, 71 (1st Cir. 1958) (Magruder, C.J.) (the expressio unius

inference "is pretty weak when applied to acts of Congress enacted

at widely separated times").

In attempting to determine whether Congress intended the

term "electronic communication" to exclude communications in

momentary storage, the expressio unius maxim is not particularly

helpful. Put differently, though it may be "presumed that Congress

acts intentionally and purposely in the disparate inclusion or

-15-
exclusion," Russello, 464 U.S. at 23, that presumption may be

rebutted. That is the case here.

First, the definitions of "wire communication" and

"electronic communication" in the Wiretap Act are not parallel.

The former is defined in a single lengthy clause that specifies

multiple independent criteria, with the electronic storage clause

tacked onto the end. See 18 U.S.C. § 2510(1). The revised

definition hews closely to its original definition in the 1968

Wiretap Act; the ECPA simply amended that definition by replacing

the phrase "communication" with "aural transfer," making certain

modifications not relevant here, and, of course, adding the clause

"and such term includes any electronic storage of such

communication."10 See ECPA § 101(a)(1)(D), 100 Stat. at 1848. By

10
Before the ECPA, the definition of "wire communication" read:

"Wire communication" means any communication made in
whole or in part through the use of facilities for the
transmission of communications by the aid of wire, cable,
or other like connection between the point of origin and
the point of reception furnished or operated by any
person engaged as a common carrier in providing or
operating such facilities for the transmission of
interstate or foreign communications.

18 U.S.C. § 2510(12) (1972). As amended by the ECPA in 1986, that
definition read:

"Wire communication" means any aural transfer made in
whole or in part through the use of facilities for the
transmission of communications by the aid of wire, cable,
or other like connection between the point of origin and
the point of reception (including the use of such
connection in a switching station) furnished or operated
by any person engaged in providing or operating such

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contrast, "electronic communication" is first defined in broad

terms which are narrowed by four specific exclusions enumerated in

separate subparagraphs. See 18 U.S.C. § 2510(12). The definition

was drafted from scratch as part of the ECPA. ECPA § 101(a)(6),

100 Stat. at 1848-49.

Second, any expressio unius inference that can be drawn

from the presence of the electronic storage clause in one

definition and its absence from another is in tension with a much

more compelling -- and directly contrary -- expressio unius

inference drawn from the same statutory provisions: Congress knew

how to, and in fact did, explicitly exclude four specific

categories of communications from the broad definition of

"electronic communication." See ECPA § 101(a)(6)(C).11 Yet

facilities for the transmission of interstate or foreign
communications or communications affecting interstate or
foreign commerce and such term includes any electronic
storage of such communication, but such term does not
include the radio portion of a cordless telephone
communication that is transmitted between the cordless
telephone handset and the base unit.

18 U.S.C. § 2510(12) (1988).
11
In 1994, Congress deleted the exclusion of cordless phone
conversations, see Communications Assistance for Law Enforcement
Act, Pub. L. No. 103-414, tit. II, § 202(a)(1), 108 Stat. 4279,
4291 (1994), and two years later, added an exclusion for electronic
funds transfer information, see Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, tit. VII, § 731(1)(C),
110 Stat. 1214, 1303 (1996). Thus, by the time of the conduct
alleged in the indictment, Congress had enacted five separate
exclusions from the definition of "electronic communication," and
deleted one of them, on three separate occasions.

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Congress never added the exclusion urged by Councilman: "any

electronic communication in electronic storage." This

interpretative principle then applies: "Where Congress explicitly

enumerates certain exceptions to a general prohibition, additional

exceptions are not to be implied, in the absence of evidence of a

contrary legislative intent." TRW v. Andrews, 534 U.S. 19, 28

(2001) (quotation marks and citation omitted).

In short, the ECPA's plain text does not clearly state

whether a communication is still an "electronic communication"

within the scope of the Wiretap Act when it is in electronic

storage during transmission. Applying canons of construction does

not resolve the question. Given this continuing ambiguity, we turn

to the legislative history.

2. Legislative History

As we explain below, the purpose of the broad definition

of electronic storage was to enlarge privacy protections for stored

data under the Wiretap Act, not to exclude e-mail messages stored

during transmission from those strong protections. Moreover,

Congress's sole purpose in adding electronic storage to the

definition of "wire communication" was to protect voice mail, and

not to affect e-mail at all.

a. Background of the ECPA

By the early 1980s, the advent of electronic

communications, principally e-mail, suggested to many that the

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Wiretap Act needed revision. To update the Act, Senator Patrick

Leahy introduced the Electronic Communications Privacy Act of 1985.

See S. 1667, 99th Cong. (1985), reprinted in 131 Cong. Rec. S11,795

(Sept. 19, 1985). That bill would have amended the Act by striking

out the existing definition of "wire communication," substituting

the phrase "electronic communication" for "wire communication"

throughout the Act, and subsuming wire communications within the

newly-defined term "electronic communication." See id. § 101.

Shortly after the bill was introduced, the Congressional

Office of Technology Assessment released a long-awaited study of

the privacy implications of electronic surveillance. See Office of

Technology Assessment, Federal Government Information Technology:

Electronic Surveillance and Civil Liberties, available at

http://www.wws.princeton.edu/~ota/disk2/1985/8509_n.html (Oct.

1985) ("OTA Report"). The report identified the different points

at which an e-mail message could be intercepted:

There are at least five discrete stages at
which an electronic mail message could be
intercepted and its contents divulged to an
unintended receiver: at the terminal or in the
electronic files of the sender, while being
communicated, in the electronic mailbox of the
receiver, when printed into hardcopy, and when
retained in the files of the electronic mail
company for administrative purposes. Existing
law offers little protection.

Id. at 48. It emphasized that "interception of electronic mail at

any stage involves a high level of intrusiveness and a significant

threat to civil liberties." Id. at 50 (emphasis added).

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 The Department of Justice ("DOJ") was the principal

opponent of the original bill. DOJ conceded that "the level of

intrusion during [an e-mail message's] transmission is higher than

when it is stored," but urged that "the interception of electronic

mail should include some but not all of the procedural requirements

of [the Wiretap Act]." Electronic Communications Privacy Act:

Hearings on H.R. 3378 Before the Subcomm. on Courts, Civil

Liberties, and the Admin. of Justice, House Comm. on the Judiciary,

99th Cong. 214, 230 (1986) ("House Hearings") (statement of James

Knapp, Deputy Assistant Attorney General, Criminal Division, U.S.

Dep't of Justice). DOJ asked Congress to treat prospective

surveillance of electronic communications differently from

surveillance of wire communications in three specific respects that

are related solely to law enforcement and are not relevant here.

See id. at 215, 232-33. DOJ's willingness to extend some of the

Wiretap Act's protections to e-mail did not, however, extend to

"the time after a specific communication has been sent and while it

is in the electronic mail firm's computers but has not been

delivered, or has been delivered to the electronic mailbox but has

not been received by the recipient." Id. at 234. In such cases,

DOJ suggested, the message should be treated like first-class mail,

and law enforcement should be able to seize it with an ordinary

search warrant. Id.

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 A new version of the bill was introduced to meet some,

but not all, of DOJ's concerns. See Electronic Communications

Privacy Act of 1986, S. 2575, 99th Cong. (1986). The new bill

rejected DOJ's preferred solution and instead added electronic

communications to the Wiretap Act's existing prohibitions on

interception of wire communications. As the House report made

clear, Congress intended to give the term "electronic

communication" a broad definition:

The term 'electronic communication' is
intended to cover a broad range of
communication activities . . . . As a rule, a
communication is an electronic communication
if it is neither carried by sound waves nor
can fairly be characterized as one containing
the human voice (carried in part by wire).
Communications consisting solely of data, for
example . . . would be electronic
communications.

H.R. Rep. No. 99-647 (1986), at 35. By incorporating electronic

communications into the Wiretap Act, the bill largely rejected

DOJ's view that e-mail should receive no (or little) more

protection than first class mail. See H.R. Rep. No. 99-647, at 22

(explaining why e-mail differs from regular mail). Nevertheless,

because some of DOJ's specific concerns were addressed, DOJ

acknowledged that "the bill has been substantially modified to

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accommodate our concerns" and supported it. Id. at 30-31.

b. The broad definition of electronic storage

Responding to concerns raised in the OTA Report, Congress

sought to ensure that the messages and by-product files that are

left behind after transmission, as well as messages stored in a

user's mailbox, are protected from unauthorized access. E-mail

messages in the sender's and recipient's computers could be

accessed by electronically "breaking into" those computers and

retrieving the files. OTA Report at 48-49. Before the ECPA, the

victim of such an attack had few legal remedies for such an

invasion. Furthermore, the e-mail messages retained on the service

provider's computers after transmission -- which, the report noted,

are primarily retained for "billing purposes and as a convenience

in case the customer loses the message" -- could be accessed and

possibly disclosed by the provider. Id. at 50. Before the ECPA,

it was not clear whether the user had the right to challenge such

a disclosure. Id. Similar concerns applied to temporary financial

records and personal data retained after transmission. Id.

Given this background and the evidence in the legislative

history that Congress responded to the OTA Report in refining the

legislation, see, e.g., House Hearings at 42-73, it appears that

Congress had in mind these types of pre- and post-transmission

"temporary, intermediate storage of a wire or electronic

communication incidental to the electronic transmission thereof,"

-22-
see 18 U.S.C. § 2510(17), when it established the definition of

"electronic storage." Its aim was simply to protect such data.

See infra Part II.C.1 (describing the Stored Communications Act).

There is no indication that it meant to exclude the type of storage

used during transmission from the scope of the Wiretap Act.

c. The electronic storage clause in the
definition of "wire communication"

The original version of the ECPA of 1986 included the

definition of "electronic storage" as it reads today, but did not

include electronic storage in the definition of "wire

communication." 132 Cong. Rec. S7,991 (June 19, 1986). Neither

Senator Leahy's floor statement upon introducing the bill nor the

staff bill summary mentioned voice mail in the context of the

Wiretap Act amendments. See id.; cf. H.R. Rep. No. 99-647, at 63

(mentioning voice mail in the context of Stored Communications

Act). Voice mail had not, apparently, been a major subject of

discussion in the context of the ECPA.12

Similarly, when Representative Kastenmeier introduced his

identical bill in the House, he did not mention voice mail in his

remarks. See 132 Cong. Rec. H4,039 (June 23, 1986). The

electronic storage clause in the wire communications definition

first appeared in Senate committee markup after the House had

already passed the bill without the clause. See 132 Cong. Rec.

12
For example, it was not mentioned in the OTA Report or DOJ's
comments in the House or Senate hearings.

-23-
S14,441 (Oct. 1, 1986). Senator Leahy, in his statement in support

of the amended bill, specifically mentioned voice mail, which he

had not done in his remarks earlier that year, and the staff

summary explained that one effect of the amended bill was that

"[w]ire communications in storage, like voice mail, remain wire

communications." Id. (emphasis added).13

If the addition of the electronic storage clause to the

definition of "wire communication" was intended to remove

electronic communications from the scope of the Wiretap Act for the

brief instants during which they are in temporary storage en route

to their destinations -- which, as it turns out, are often the

points where it is technologically easiest to intercept those

communications -- neither of the Senate co-sponsors saw fit to

mention this to their colleagues, and no one, evidently, remarked

upon it. No document or legislator ever suggested that the

addition of the electronic storage clause to the definition of

"wire communication" would take messages in electronic storage out

of the definition of "electronic communication." Indeed, we doubt

that Congress contemplated the existential oddity that Councilman's

interpretation creates: messages -- conceded by stipulation to be

13
The summary also noted that "[c]ertain electronic
communications are exempted from the coverage of the bill" and
listed the exceptions contained in 18 U.S.C. § 2511(2)(g), none of
which are relevant here. Id. Nowhere did it suggest that
electronic communications that were briefly in temporary storage
were exempted from the coverage of the bill.

-24-
electronic communications -- briefly cease to be electronic

communications for very short intervals, and then suddenly become

electronic communications again. Cf. H.R. Rep. No. 99-647, at 35

("The term 'electronic communication' is intended to cover a broad

range of communication activities . . . . Communications

consisting solely of data . . . would be electronic

communications.").

In sum, the legislative history indicates that Congress

included the electronic storage clause in the definition of "wire

communication" provision for the sole reason that, without it,

access to voicemail would have been regulated solely by the Stored

Communications Act. Indeed, that is exactly what happened when

Congress later removed the explicit reference to "electronic

storage" from the definition of "wire communication" in the Uniting

and Strengthening America by Providing Appropriate Tools Required

to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Pub. L. No.

107-56, tit. II, § 209(1)(A), 115 Stat. 272, 283 (2001). See

Robert A. Pikowsky, An Overview of the Law of Electronic

Surveillance Post September 11, 2001, 94 Law Libr. J. 601, 608

(2002) ("[T]he USA PATRIOT Act amended the statutory scheme and

unambiguously brought voicemail under the Stored Communications

Act.").

-25-
 3. Conclusion

We conclude that the term "electronic communication"

includes transient electronic storage that is intrinsic to the

communication process for such communications. That conclusion is

consistent with our precedent. See Blumofe v. Pharmatrak, Inc. (In

re Pharmatrak Privacy Litig.), 329 F.3d 9, 21 (1st Cir. 2003) (a

rigid "storage-transit dichotomy . . . may be less than apt to

address current problems");14 see also Hall v. EarthLink Network,

Inc., 396 F.3d 500, 503 n.1 (2d Cir. 2005) (rejecting arguments

that "communication over the Internet can only be electronic

communication while it is in transit, not while it is in electronic

storage"). Consequently, in this context we reject Councilman's

proposed distinction between "in transit" and "in storage."

B. "Intercept"

Even though we conclude that the temporarily stored e-

mail messages at issue here constitute electronic communications

within the scope of the Wiretap Act, the statute also requires the

conduct alleged in the indictment to be an "intercept[ion]." 18

U.S.C. § 2511(1) (making it an offense to "intentionally

intercept[], endeavor[] to intercept, or procure[] any other person

14
Pharmatrak arose from a tracking program that surreptitiously
transmitted information about users' web browsing activity to a
third party. Web sites using the service added to their web pages
an instruction to download an invisible image from the Pharmatrak
web site. This caused the user's computer to communicate directly
to Pharmatrak's web server, which recorded information about the
user and her browsing activity. See id. at 13-14.

-26-
to intercept or endeavor to intercept, any . . . electronic

communication"). The term "intercept" is defined broadly as "the

aural or other acquisition of the contents of any wire, electronic,

or oral communication through the use of any electronic,

mechanical, or other device." Id. § 2510(4).

Councilman's core argument on appeal is that because the

messages at issue, when acquired, were in transient electronic

storage, they were not "electronic communication[s]" and,

therefore, section 2511(1)'s prohibition on "intercept[ion]" of any

"electronic communication" did not apply. That is the argument

that we have now rejected in holding that an e-mail message does

not cease to be an "electronic communication" during the momentary

intervals, intrinsic to the communication process, at which the

message resides in transient electronic storage. See supra Part

II.A.

Councilman's appeal does not provide any other basis for

finding that the acquisitions were not "intercept[ions]" of

"electronic communication[s]." To be sure, Councilman does argue

that "Congress intended 'intercept' to cover acquisitions

'contemporaneous with transmission.'" However, his entire argument

on this point is based on the theory, as he writes in his brief,

that "[c]ourts uniformly have understood 'electronic storage' to

negate the 'contemporaneous with transmission' element of a Wiretap

Act 'intercept,'" and therefore "an e-mail in 'electronic storage'

-27-
. . . cannot by definition be acquired 'contemporaneous with

transmission.'" That argument is simply a variation on, and

entirely subsumed within, his primary argument concerning "storage"

-- the very argument that we have now rejected.

Consequently, this appeal does not implicate the question

of whether the term "intercept" applies only to acquisitions that

occur contemporaneously with the transmission of a message from

sender to recipient or, instead, extends to an event that occurs

after a message has crossed the finish line of transmission

(whatever that point may be). See Pharmatrak, 329 F.3d at 21-22

(noting that the concept of a contemporaneity or real-time

requirement, which evolved in other factual contexts, may not be

apt to address issues involving the application of the Wiretap Act

to electronic communications). We therefore need not decide that

question. See United States v. Moran, 393 F.3d 1, 12 (1st Cir.

2004) (noting that, in certain circumstances, an appellee is

obliged, on pain of waiver, to raise additional or alternative

bases for affirming a favorable judgment); Raxton Corp. v. Anania

Assocs., Inc., 668 F.2d 622, 624 (1st Cir. 1982) (emphasizing the

importance of "[t]he presentation on appeal of all viable

justifications of a judgment").

That ends this aspect of the matter. Because the facts

of this case and the arguments before us do not invite

consideration of either the existence or the applicability of a

-28-
contemporaneity or real-time requirement, we need not and do not

plunge into that morass. We note, however, that even were we

prepared to recognize a contemporaneity or real-time requirement --

a step that we do not take today -- we think it highly unlikely

that Councilman could generate a winning argument in the

circumstances of this case. Any such argument would entail a

showing that each transmission was complete at the time of

acquisition and, therefore, that the definition of "intercept" does

not cover the acquisitions. Such a showing would appear to be

impossible since we have concluded that the messages were

electronic communications, and it is undisputed that they were

acquired while they were still en route to the intended recipients.

C. Intersection of the Wiretap Act and the Stored
Communications Act

Thus far we have considered only the Wiretap Act, not the

Stored Communications Act, 18 U.S.C. §§ 2701-2712, because the

indictment only alleged a violation of the former. Councilman

argues that acquisition of electronic communications in temporary

electronic storage is regulated by the Stored Communications Act.

From this he infers that such acquisition is not regulated by the

Wiretap Act, or that, at minimum, the potential overlap implicates

the rule of lenity or other doctrines of "fair warning."

Consequently, we must delve into the "complex, often convoluted"

intersection of the Wiretap Act and Stored Communications Act.

United States v. Smith, 155 F.3d 1051, 1055 (9th Cir. 1998).

-29-
 1. The Stored Communications Act's Coverage

While drafting the ECPA's amendments to the Wiretap Act,

Congress also recognized that, with the rise of remote computing

operations and large databanks of stored electronic communications,

threats to individual privacy extended well beyond the bounds of

the Wiretap Act's prohibition against the "interception" of

communications. These types of stored communications -- including

stored e-mail messages -- were not protected by the Wiretap Act.

Therefore, Congress concluded that "the information [in these

communications] may be open to possible wrongful use and public

disclosure by law enforcement authorities as well as unauthorized

private parties." S. Rep. No. 99-541, at 3 (1986), reprinted in

1986 U.S.C.C.A.N. 3555, 3557.

Congress added Title II to the ECPA to halt these

potential intrusions on individual privacy. This title, commonly

referred to as the Stored Communications Act,15 established new

punishments for accessing, without (or in excess of) authorization,

an electronic communications service facility and thereby obtaining

access to a wire or electronic communication in electronic storage.

18 U.S.C. § 2701(a). Another provision bars electronic

communications service providers from "divulg[ing] to any person or

15
As noted, Title I of the ECPA amended the 1968 Wiretap Act.
By "Wiretap Act," we mean the 1968 Wiretap Act as amended by Title
I of the ECPA. We refer to Title II of the ECPA simply as the
Stored Communications Act.

-30-
entity the contents of a communication while in electronic storage

by that service." Id. § 2702(a)(1).

The privacy protections established by the Stored

Communications Act were intended to apply to two categories of

communications defined by the statutory term "electronic storage":

(A) any temporary, intermediate storage of a
wire or electronic communication incidental to
the electronic transmission thereof; and
(B) any storage of such communication by an
electronic communication service for purposes
of backup protection of such communication.

18 U.S.C. § 2510(17); id. § 2711(a) (incorporating Wiretap Act

definitions into Stored Communications Act). The first category,

which is relevant here, refers to temporary storage, such as when

a message sits in an e-mail user's mailbox after transmission but

before the user has retrieved the message from the mail server.

Councilman's conduct may appear to fall under the Stored

Communications Act's main criminal provision:

(a) Offense. Except as provided in subsection
(c) of this section whoever--
(1) intentionally accesses without
authorization a facility through which
an electronic communication service is
provided; or
(2) intentionally exceeds an
authorization to access that
facility;
and thereby obtains, alters, or prevents
authorized access to a wire or electronic
communication while it is in electronic
storage in such system shall be punished
. . . .

-31-
18 U.S.C. § 2701(a). At the same time, Councilman would arguably

be exempted by the Stored Communications Act's provider exception:

"Subsection (a) of this section does not apply with respect to

conduct authorized (1) by the person or entity providing a wire or

electronic communications service." Id. § 2701(c). Under this

theory, § 2701(c)(1) establishes virtually complete immunity for a

service provider that "obtains, alters, or prevents authorized

access to" e-mail that is "in electronic storage" in its system.

See Fraser, 352 F.3d at 115 ("[W]e read § 2701(c) literally to

except from Title II's protection all searches by communications

service providers."). The district court surmised that § 2701(a)

would have covered Councilman's conduct but that § 2701(c)(1)

exempted him. Councilman, 245 F. Supp. 2d at 320.

A second provision of the Stored Communications Act

prohibits "a person or entity providing an electronic communication

service to the public [from] knowingly divulg[ing] to any person or

entity the contents of a communication while in electronic storage

by that service." 18 U.S.C. § 2702(a)(1). Yet this provision,

too, has service provider exceptions, permitting a provider to

divulge an electronic communication "to a person employed or

authorized or whose facilities are used to forward such

communication to its destination," id. § 2702(b)(4), or "as may be

necessarily incident to the rendition of the service or to the

protection of the rights or property of the provider of that

-32-
service," id. § 2702(b)(5). We assume, dubitante, that one or both

of these provisions would exempt Councilman under § 2702.

On this premise, he argues that if he is not liable under

the Stored Communications Act, then he cannot be liable under the

Wiretap Act either. Since Congress enacted the ECPA as a package,

he says, it did not intend to lay traps in the overlap between the

two titles. If conduct that potentially falls under both titles is

exempt from one of them, then that exemption provides a "safe

harbor" and the conduct does not violate the other title either.

We find this argument unpersuasive. In general, if two

statutes cover the same conduct, the government may charge a

violation of either. See United States v. Herring, 993 F.2d 784,

788 n.4 (11th Cir. 1993) (en banc) ("The overlapping coverage of

the Wiretap Act and the Communications Act [of 1934] presents no

problem. In such a case, the prosecution has the right to select

the statute under which the indictment will be brought.").

Moreover, the exceptions in the Stored Communications Act do not,

by their terms, apply to the Wiretap Act. The exception in

§ 2701(c) specifically limits its application by stating that

"[s]ubsection (a) of this section does not apply . . . to conduct

authorized" by the service provider. (Emphasis added). The

§ 2701(c)(1) provider exception's breadth presents a striking

contrast to the Wiretap Act's own, much narrower provider

exception:

-33-
 It shall not be unlawful under this chapter
for . . . an officer, employee, or agent of a
provider of wire or electronic communication
service, whose facilities are used in the
transmission of a wire or electronic
communication, to intercept, disclose, or use
that communication in the normal course of his
employment while engaged in any activity which
is a necessary incident to the rendition of
his service or to the protection of the rights
or property of the provider of that service
. . . .

Id. § 2511(2)(a)(i) (emphasis added). It is indisputable that the

Wiretap Act's narrower service provider exception would not protect

Councilman. His alleged conduct was clearly not "a necessary

incident to the rendition of his service or to the protection of

the rights or property of the provider of that service." If there

were any doubt remaining, it would be resolved by the Wiretap Act's

express provision that the only exceptions to its prohibitions are

those specifically listed within the Wiretap Act, not those found

in other laws. See 18 U.S.C. § 2511(1) (prohibitions apply

"[e]xcept as otherwise specifically provided in this chapter [the

Wiretap Act, 18 U.S.C. §§ 2510-2522]") (emphasis added).

2. Fair Warning

Councilman argues in the alternative that the two titles

are sufficiently confusing that principles of fair warning require

dismissal of the indictment. Those principles are expressed in the

law through three related doctrines: the rule of lenity, the

vagueness doctrine, and the prohibition against unforeseeably

expansive judicial constructions. See United States v. Lanier, 520

-34-
U.S. 259, 266-67 (1997); United States v. Hussein, 351 F.3d 9,

14-16 (1st Cir. 2003). We address each in turn.

a. Lenity

Under the rule of lenity, grievous ambiguity in a penal

statute is resolved in the defendant's favor. See Lanier, 520 U.S.

at 266. "The simple existence of some statutory ambiguity, however,

is not sufficient to warrant application of that rule, for most

statutes are ambiguous to some degree." Muscarello v. United

States, 524 U.S. 125, 138-39 (1998). Rather, the rule only applies

if "there is a grievous ambiguity or uncertainty in the statute."

Id. at 139 (quotation marks and citation omitted) (emphasis added).

Furthermore, lenity "applies only if, after seizing everything from

which aid can be derived, [a court] can make no more than a guess

as to what Congress intended." Reno v. Koray, 515 U.S. 50, 65

(1995) (quotation marks and citation omitted); accord United States

v. Balint, 201 F.3d 928, 935 (7th Cir. 2000) ("The rule of lenity

is unavailable to us if the purported ambiguity in a statute can be

resolved through normal methods of statutory construction.").

Here, while the statute contains some textual ambiguity,

it is not "grievous." We have construed it using traditional tools

of construction, particularly legislative history, and lenity is

therefore inapplicable. See, e.g., Dixson v. United States, 465

U.S. 482, 491 (1984) ("If the legislative history fails to clarify

the statutory language, our rule of lenity would compel us to

-35-
construe the statute in favor of petitioners, as criminal

defendants in these cases.") (emphasis added).

Furthermore, Congress specifically anticipated that

communication service providers might, in good faith, misapprehend

their lawful ability to intercept or disclose communications in

certain circumstances. Congress addressed that problem with a

broad, affirmative good faith defense:

A good faith reliance on . . . (3) a good
faith determination that [§ 2511(3)] permitted
the conduct complained of[] is a complete
defense against any civil or criminal action
brought under [the Wiretap Act] or any other
law.

18 U.S.C. § 2520(d)(3).16 Section 2511(3), in turn, authorizes a

communication service provider to divulge a communication to one

other than the recipient in four specified circumstances.17 Thus,

16
Section 2520(d) originated with the 1968 Wiretap Act, which
specified that "[a] good faith reliance on a court order or on the
provisions of [18 U.S.C. § 2518(7) (emergency wiretaps)] shall
constitute a complete defense to any civil or criminal action
brought under this chapter." Pub. L. No. 90-851, sec. 802, § 2520,
82 Stat. at 223. After various other amendments not relevant here,
see generally Jacobson v. Rose, 592 F.2d 515, 522-23 & nn. 13-15
(9th Cir. 1978) (recounting pre-ECPA history of provision), the
ECPA broadened the types of authority on which the defense could be
based. ECPA § 103, 100 Stat. at 1854.
17
Those circumstances are:

(i) as otherwise authorized in section 2511(2)(a) or 2517
. . .
(ii) with the lawful consent of the originator or any
addressee or intended recipient of such communication;
(iii) to a person employed or authorized, or whose
facilities are used, to forward such communication to its
destination; or

-36-
Congress contemplated that service providers might, in good faith,

misunderstand the limits of their authority on a particular set of

facts, and provided a statutory mechanism to solve this problem.

We may neither expand the good faith defense's scope, nor convert

it from a fact-based affirmative defense to a basis for dismissing

an indictment on legal grounds.18

b. Vagueness

The vagueness doctrine bars enforcement of a statute

whose terms are "so vague that men of common intelligence must

necessarily guess at its meaning and differ as to its application."

Lanier, 520 U.S. at 266 (quotation marks and citation omitted).

But vagueness is more than just "garden-variety, textual

ambiguity." Sabetti v. Dipaolo, 16 F.3d 16, 18 (1st Cir. 1994)

(Breyer, C.J.). "Many statutes will have some inherent vagueness,

for '[i]n most English words and phrases there lurk

uncertainties.'" Rose v. Locke, 423 U.S. 48, 49-50 (1975) (per

curiam) (citation omitted). But a statute is unconstitutionally

vague only if it "prohibits . . . an act in terms so uncertain that

(iv) [if the communications] were inadvertently obtained
by the service provider and which appear to pertain to
the commission of a crime, if such divulgence is made to
a law enforcement agency.

18 U.S.C. §§ 2511(3)(b)(i)-(iv).
18
Nothing in this opinion prejudices Councilman's ability to
argue the good faith defense in subsequent proceedings.

-37-
persons of average intelligence would have no choice but to guess

at its meaning and modes of application." Hussein, 351 F.3d at 14.

The Wiretap Act is not unconstitutionally vague in its

application here. From its text, a person of average intelligence

would, at the very least, be on notice that "[e]xcept as otherwise

specifically provided in" the Act, "electronic communication[s],"

which are defined expansively, may not be "intercepted." 18 U.S.C.

§ 2511(1)(a). An exception is provided for electronic

communication service providers, but it only applies to "activity

which is a necessary incident to the rendition of [the] service or

to the protection of the rights or property of the provider of that

service." 18 U.S.C. § 2511(2)(a)(i). The Act puts the service

provider on notice of both the prohibited conduct and the narrow

provider exception. That is adequate notice.

c. Unforeseeably expansive interpretation

Finally, the third branch of fair warning doctrine "bars

courts from applying a novel construction of a criminal statute to

conduct that neither the statute nor any prior judicial decision

has fairly disclosed to be within its scope." Lanier, 520 U.S. at

266. This doctrine principally "bars 'unforeseeable and

retroactive judicial expansion of narrow and precise statutory

language.'" Hussein, 351 F.3d at 14 (citation omitted); accord

Balint, 201 F.3d at 935 (doctrine only applies if judicial

interpretations "amount to an unpredictable shift in the law").

-38-
 That doctrine does not apply here. The simplest reading

of the statute is that the e-mail messages were "electronic

communications" under the statute at the point where they were

intercepted. One must apply tools of statutory construction to

remove the conduct from the statute's ambit by interpreting a

subtlety in the definition of "wire communications." Whatever else

one might say about the Wiretap Act, "intercept[ing] . . .

electronic communication[s]," 18 U.S.C. § 2511(1)(a), is "conduct

that . . . the statute . . . has fairly disclosed to be within its

scope," Lanier, 520 U.S. at 266.

Indeed, a 1997 law review article observed that, under a

narrow interpretation of the ECPA's "intercept" prohibition,

"unless some type of automatic routing software is used (for

example, a duplicate of all an employee's messages are

automatically sent to the employee's boss), interception of E-mail

within the prohibition of the ECPA is virtually impossible."

Jarrod J. White, E-Mail @ Work.com: Employer Monitoring of Employee

E-Mail, 48 Ala. L. Rev. 1079, 1083 (1997) (emphasis added); see

also Pharmatrak, 329 F.3d at 22 (quoting this language

approvingly). Thus, almost a year before Councilman's alleged

conduct, the academic literature had noted that, even under a

reading of the ECPA narrower than ours, "automatic routing

software" that automatically forwarded duplicate copies of a user's

-39-
messages would qualify as "interception of E-mail within the

prohibition of the ECPA." Id. That observation anticipated this

case.19

III.

Although the text of the statute does not specify whether

the term "electronic communication" includes communications in

electronic storage, the legislative history of the ECPA indicates

that Congress intended the term to be defined broadly.

Furthermore, that history confirms that Congress did not intend, by

including electronic storage within the definition of wire

communications, to thereby exclude electronic storage from the

definition of electronic communications.

We therefore conclude that the term "electronic

communication" includes transient electronic storage that is

intrinsic to the communication process, and hence that interception

of an e-mail message in such storage is an offense under the

Wiretap Act. Moreover, the various doctrines of fair warning do

19
The dissent says that "White's article, like other
scholarship available at the time, thus would have forcefully
suggested that Councilman's conduct was not prohibited." Post at
51 (Torruella, J., dissenting). That is not so. Although the
article described the implications of the Fifth Circuit opinion in
Steve Jackson Games, Inc. v. United States Secret Serv., 36 F.3d
457, 458 (5th Cir. 1994), it identified the possibility that, even
under that case's narrow view of the intercept prohibition, there
is a category of automatic e-mail routing software that might, in
some situations, violate the Wiretap Act.

-40-
not bar prosecution for that offense. Consequently, the district

court erred in dismissing the indictment.

Judgment vacated. Remanded for further proceedings

consistent with this opinion.

- Dissenting Opinion Follows -

-41-
 TORRUELLA, Circuit Judge, with whom CYR, Senior Circuit

Judge, joins (Dissenting). Although I commend Judge Lipez on his

erudite and articulate majority opinion, I am impeded from joining

the same for two reasons. First, the indictment is legally

insufficient to establish a criminal violation of 18 U.S.C. § 371

for conspiracy to violate the Wiretap Act, 18 U.S.C. § 2511,

insofar as the e-mails Councilman is alleged to have retrieved were

in "electronic storage," 18 U.S.C. § 2510(17), when that action

took place, and therefore, the Wiretap Act's requisite element of

"interception," 18 U.S.C. § 2511, is lacking. See United States v.

Councilman, 373 F.3d 197, 200-04 (1st Cir. 2004). Second, and in

the alternative, the result reached by the en banc majority

deprives Councilman of due process of law, because he had no "fair

warning" of the potential criminal consequences of his actions.

See United States v. Lanier, 520 U.S. 259, 265 (1997).

But for the juxtaposition of our respective views, there

is not much new in the positions of the majority and dissent from

those presented by the panel opinion except that, by reason of the

majority's conclusion that the indictment charges a valid criminal

violation, we are required to discuss Councilman's due process

claim, which the panel did not have to reach. See Councilman, 373

F.3d at 204 n.7.

-42-
 I.

The facts of this case as stipulated by the parties state

that "[a]t all times that sendmail and procmail performed

operations affecting the email messages at issue, the messages

existed in the random access memory (RAM) or in hard disks, or

both, within Interloc's computer system." (Emphasis added).

Stripped of all technical jargon, the sole legal issue

presented by this appeal is whether the information contained in

this computer system is data that can be "intercepted" within the

meaning of the Wiretap Act. The answer to that question is not to

be found in the wringing of the proverbial hands or dire warnings

of the Doomsday that is predicted to follow one or the other

conclusion. Cf. Yvette Joy Liebesman, The Potential Effects of

United States v. Councilman on the Confidentiality of Attorney-

Client E-Mail Communications, 18 Geog. J. Legal Ethics 893 (2005).

Rather, the answer lies in a dispassionate reading of the

legislation20 upon which the criminal charges are based.

The statute that Councilman is charged with conspiring to

violate provides for criminal sanctions against "any person who --

(a) intentionally intercepts,21 endeavors to intercept, or procures

20
As in the majority's opinion, statutory references herein are
to the pre-2001 version of the Wiretap Act. See maj. op. at 6,
n.4.
21
The term "intercept" is defined as "the aural or other
acquisition of the contents of any wire, electronic, or oral
communication through the use of any electronic, mechanical, or

-43-
any other person to intercept or endeavor to intercept, any wire,

oral, or electronic communication." 18 U.S.C. § 2511(1) (emphasis

added). The term "electronic communication" is defined as "any

transfer of signs, signals, writing, images, sounds, data, or

intelligence of any nature transmitted in whole or in part by wire,

radio, electromagnetic, photoelectronic or photooptical system."

18 U.S.C. § 2510(12). In contrast, the term "wire communication"

is defined as "any aural transfer made in whole or in part through

the use of facilities for the transmission of communications by the

aid of wire, cable, or other like connection between the point of

origin and the point of reception . . . furnished or operated by

any person engaged in providing or operating such facilities . . .

and such term includes any electronic storage22 of such

communication." 18 U.S.C. § 2510(1) (emphasis added).

It is Congress' failure to provide this emphasized

language in its definition of "electronic communication" that

incites the majority into engaging in what I believe to be an

unfortunate act of judicial legislation that no amount of

syllogization can camouflage. The lacuna between the definition of

other device." 18 U.S.C. § 2510(4).
22
"Electronic storage" is broadly defined as "(A) any
temporary, intermediate storage of a wire or electronic
communication incidental to the electronic transmission thereof;
and (B) any storage of such communication by an electronic
communication service for purposes of backup protection of such
communication." 18 U.S.C. § 2510(17) (emphasis added).

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"wire communication" and that of "electronic communication" can

only be bridged by the body that created it; jurisprudential "body

English" does not suffice to fill that vacuum. Although nature

abhors a vacuum, it has no power over legislative oversights.

In finding the correct legal answer to the non-existent

dilemma which the majority believes exists, we need go no further

than our own In re Hart, in which, apropos of the present

circumstances, we stated that, "[w]hen Congress includes particular

language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate inclusion or

exclusion." 328 F.3d 45, 49 (1st Cir. 2003) (quoting Barnhart v.

Sigmon Coal Co., 534 U.S. 438, 452 (2002)). Contrary to the

majority's assertions that this expressio unius presumption ought

not apply because the language in question was not part of a "new,

self-contained statute," maj. op. at 13, it is actually "made

stronger when, as here, Congress has amended a statute to include

certain language in some, but not all, provisions of the Statute."

United States v. Steiger, 318 F.3d 1039, 1051 (11th Cir. 2003)

(construing the Electronic Communications Privacy Act), cert.

denied, 538 U.S. 1051 (2003); see also United States v. Fisher, 6

U.S. (2 Cranch) 358, 399 (1805) ("Where a law is plain and

unambiguous, whether it be expressed in general or limited terms,

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the legislature should be intended to mean what they have plainly

expressed, and consequently no room is left for construction.").

These principles are particularly relevant to the

interpretation of federal criminal statutes, for "[f]ederal crimes

are defined by Congress, not the courts," and thus "policies of

strict construction" should guide our actions. Lanier, 520 U.S. at

267 n.6.

It is not by coincidence that every court that has passed

upon the issue before us has reached a conclusion opposite to that

of the en banc majority: that the Wiretap Act's prohibition on

intercepting electronic communications does not apply when they are

contained in electronic storage, whether such storage occurs pre-

or post-delivery, and even if the storage lasts only a few mili-

seconds. See Theofel v. Farey-Jones, 359 F.3d 1066, 1077-78 (9th

Cir. 2004) (post-delivery); Fraser v. Nationwide Mut. Ins. Co., 352

F.3d 107, 113-14 (3d Cir. 2003) (post-delivery); United States v.

Steiger, 318 F.3d 1039, 1048-49 (11th Cir. 2003) (on hard drive),

cert. denied, 538 U.S. 1051 (2003); Konop v. Hawaiian Airlines, 302

F.3d 868, 878-79 (9th Cir. 2002) (on website server), cert. denied,

537 U.S. 1193 (2003); Steve Jackson Games, Inc. v. United States

Secret Serv., 36 F.3d 457, 461-62 (5th Cir. 1994) (pre-retrieval);

see also United States v. Reyes, 922 F. Supp. 818, 836 (S.D.N.Y.

1996) (finding no interception where messages were retrieved from

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pagers' memories prior to their retrieval by intended recipients

because the messages were in "electronic storage").

Contrary to the en banc majority's view, our

interpretation of the statute does not require that we assume that

Congress contemplated the complete evisceration of the privacy

protections for e-mail. When considering the intra-computer

"interceptions" at issue here, Congress rationally may well have

concluded that the public's privacy rights, or more specifically

those between an e-mail service provider and its own customers,

could be adequately controlled by normal contract principles rather

than by federal statute. Councilman's "interception" of Interloc

customers' e-mail was not akin to an interception engaged in by an

outside party who was unrelated or unknown to the contracting

parties. When a customer signs up with an e-mail provider like

Interloc, he routinely is asked to read and expressly sign off on

a privacy agreement which defines his expectations of privacy vis-

à-vis the provider. If the protections are inadequate, he may

decline the e-mail service and seek an alternative service contract

which will afford him the protections he requires. Neither the

Wiretap Act nor its legislative history forecloses the inference

that Congress, in its exclusion of "electronic storage" from the

definition of "electronic communication," intended to leave such

matters to the exigencies of the contracting parties. If Interloc

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did intercept its customers' messages in breach of a privacy

agreement, the remedy lies in contract, not in the Wiretap Act.

I see no point in rummaging through the legislative

history of a statute whose language, or more accurately, absence

thereof, speaks for itself. "[W]hen the statute's language is

plain, the sole function of the courts -- at least where the

disposition required by the text is not absurd -- is to enforce it

according to its terms." Dodd v. United States, 125 S. Ct. 2478,

2483 (2005) (quoting Hartford Underwriters Ins. Co. v. Union

Planters Bank, N.A., 530 U.S. 1, 6 (2000)). This case presents the

classic example of "legislative history [which] is itself often

murky, ambiguous, and contradictory." Exxon Mobil Corp. v.

Attapattah Servs., Inc., 125 S. Ct. 2611, 2626 (2005) (rev'g

Rosario Ortega v. Star-Kist Foods, Inc., 370 F.3d 124 (1st Cir.

2004)).

Judicial investigation of legislative history
has a tendency to become, to borrow Judge
Leventhal's memorable phrase, an exercise in
'looking over a crowd and picking out your
friends.' . . . [J]udicial reliance on
legislative materials like committee reports,
which are not themselves subject to the
requirements of Article I, may give
unrepresentative committee members--or worse
yet, unelected staffers and lobbyists--both
the power and incentive to attempt strategic
manipulations of legislative history to secure
results they were unable to achieve through
the statutory text.

Id. In any event, I refer to the panel opinion on this point.

Councilman, 373 F.3d at 203-04.

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 I believe that both viewpoints on the first issue before

the en banc court have been adequately expressed. Ultimately, it

is up to the Supreme Court to determine which is correct, but, in

my view the government has attempted to fish with a net that has

holes in it and is thus in need of repair.

II.

Unfortunately, the matter does not end here. As

demonstrated by the results of previous efforts by this and other

courts to grapple with the statute in question, any lingering

ambiguity that makes room for the majority's interpretation

certainly qualifies as "grievous," maj. op. at 35. Due process,

therefore, requires that the statute be construed against criminal

liability, in accordance with the rule of lenity. See Lanier, 520

U.S. at 266; Huddleston v. United States, 415 U.S. 814, 831 (1974).

Even if the ambiguity is not so serious, and "clarity at the

requisite level may be supplied by [the majority's] judicial gloss

on an otherwise uncertain statute, due process bars courts from

applying a novel construction of a criminal statute to conduct that

neither the statute nor any prior judicial decision has fairly

disclosed to be within its scope." Lanier, 520 U.S. at 266.

Whichever doctrine of "fair warning" one might apply, the bottom

line is that the statute and the cases construing it did not make

it "reasonably clear at the relevant time that the defendant's

conduct was criminal." Id. at 267.

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 At the time that Councilman allegedly violated the

Wiretap Act in 1998, he would have had available the following to

guide his conduct: (1) the statute in question, and (2) the

Jackson Games case (1994) and, tangentially, the Reyes case (1996).

There is little in any of these that would have given Councilman

fair notice of the en banc majority's interpretation, which itself

requires reliance on legislative "history" that resembles a

Byzantine maze.

Nor did the 1997 law review article cited by the majority

render the interpretation adopted today foreseeable. Quite the

opposite, in fact. That article examined the decision in Steve

Jackson Games, 36 F.3d 457, in which the Fifth Circuit determined

that the pre-retrieval seizure of private e-mails stored on a

bulletin board server did not constitute an "intercept" under 18

U.S.C. § 2511(1)(a). White wrote:

Rejecting the appellant's argument that
logically seizure of something before it is
received should constitute interception, the
Steve Jackson Games court held that the E-mail
stored on the [bulletin board's] computer hard
drive was no longer in transmission, and thus
could not be intercepted within the meaning of
18 U.S.C. S 2511(1)(a). . . . The narrowness
of the Fifth Circuit's interpretation of
"interception" is important. Following the
Fifth Circuit's rationale, there is only a
narrow window during which an E-mail
interception may occur -- the seconds or
mili-seconds before which a newly composed
message is saved to any temporary location
following a send command. Therefore, unless
some type of automatic routing software is
used (for example, a duplicate of all an

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 employee's messages are automatically sent to
the employee's boss), interception of E-mail
within the prohibition of the ECPA is
virtually impossible.

White, supra, at 1082-83 (footnote omitted) (emphasis added).

Clearly, the software used by Councilman was not "automatic routing

software" that operates "before a newly composed message is saved

to any temporary location." Id. at 1083. White's article, like

other scholarship available at the time, thus would have forcefully

suggested that Councilman's conduct was not prohibited. See Thomas

R. Greenberg, E-Mail and Voice Mail: Employee Privacy and the

Federal Wiretap Statute, 44 Am. U. L. Rev. 219, 249 (1994) ("Thus,

the limitations imposed on employer interceptions of wire and

electronic communications vanish once the same communication is in

storage. Accordingly, in order to avoid Title III liability, an

employer need only access employee communications once they have

been stored."); Ruel Torres Hernández, ECPA and Online Computer

Privacy, 41 Fed. Comm. L.J. 17, 39 (1988-1989) ("In other words,

there simply is no ECPA violation if the person or entity providing

a wire or electronic communication service intentionally examines

everything [in storage] on the system, whether or not it is for the

purpose of a quality control check.") (internal quotation marks

omitted). Thus, I am at a loss to conceive how Councilman would

have had fair notice of the majority's interpretation at the time

of his actions.

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 Finally, Congress's provision of a good faith exception

for those who divulge intercepted communications because they

misconstrued the Wiretap Act's narrow exceptions to criminal

liability as an affirmative defense, see maj. op. at 36-37 (citing

18 U.S.C. § 2520(d)(3)), is irrelevant. Councilman should not have

to show he relied on those exceptions to divulge the e-mails he

obtained, because he had no "reasonably clear" indication that to

do so would otherwise violate the Wiretap Act.

Councilman is being held to a level of knowledge which

would not be expected of any of the judges who have dealt with this

problem, to say nothing of "men [and women] of common

intelligence." Lanier, 520 U.S. at 266 (quoting Connally v. Gen.

Constr. Co., 269 U.S. 385, 391 (1926)). If the issue presented be

"garden-variety," maj. op. at 37 (quoting Sabetti v. Diapaolo, 16

F.3d 16, 18 (1st Cir. 1994)), this is a garden in need of a weed

killer.

For the reasons stated, I respectfully dissent.

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